J. A16044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
NATHAN J. IZZARD, : No. 1090 EDA 2017
:
Appellant :
Appeal from the PCRA Order, February 24, 2017,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0140681-1989
BEFORE: BENDER, P.J.E., LAZARUS, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2018
Nathan J. Izzard appeals pro se from the February 24, 2017 order
dismissing his serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, as untimely. After careful review, we
affirm.
The relevant facts and procedural history of this case were summarized
in the PCRA court’s July 24, 2017 opinion and need not be reiterated here.
(See PCRA court opinion, 7/24/17 at 1.) In sum, on March 22, 1990, appellant
was found guilty of first-degree murder and related offenses in connection
with the shooting death of a 12-year-old boy and was sentenced to an
aggregate term of life imprisonment. On February 1, 1994, a panel of this
court affirmed appellant’s judgment of sentence, and our supreme court
denied allocator on August 24, 1994. Commonwealth v. Izzard, 643 A.2d
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704 (Pa.Super. 1994), appeal denied, 648 A.2d 787 (Pa. 1994). On
January 16, 1997, appellant filed a pro se PCRA petition and counsel was
appointed to represent him. The PCRA court ultimately dismissed appellant’s
petition on July 21, 2000. On April 9, 2002, a panel of this court affirmed the
dismissal of appellant’s petition, and our supreme court denied allocator on
October 4, 2002. Commonwealth v. Izzard, 803 A.2d 793 (Pa.Super.
2002), appeal denied, 809 A.2d 902 (Pa. 2002). Appellant filed a second
pro se PCRA petition on February 18, 2014, and counsel was again appointed
to represent him. Counsel was granted permission to withdraw in accordance
with Turner/Finley,1 and the PCRA court dismissed appellant’s petition on
October 31, 2014.
On December 4, 2014, appellant filed yet another pro se PCRA petition
styled as a “Nunc Pro Tunc Motion for Post Conviction Relief,” raising a claim
under Alleyne v. United States, 570 U.S. 99 (2013).2 On December 11,
1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc).
2 In Alleyne, the Supreme Court held that the Sixth Amendment requires that
“[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that
must be submitted to the jury and found beyond a reasonable doubt.”
Alleyne, 570 U.S. at 103 (citation omitted). We note that this court has
expressly rejected the notion that judicial decisions constitute newly
discovered facts that invoke the protections afforded by
Section 9545(b)(1)(ii). See Commonwealth v. Brandon, 51 A.3d 231, 235
(Pa.Super. 2012) (holding that a judicial determination does not qualify as a
previously unknown “fact” capable of triggering the timeliness exception set
forth in Section 9545(b)(1)(ii) of the PCRA). Furthermore, courts in this
Commonwealth have specifically recognized that Alleyne does not apply
retroactively to cases on collateral review. See Commonwealth v. Riggle,
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2015, appellant filed another “Nunc Pro Tunc Motion for Post[-]Conviction
Relief []” that references this court’s decision in Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014), appeal denied 121 A.3d 496 (Pa.
2015), and appears to amend the December 4, 2014 filing. Thereafter, on
June 16, 2016, appellant filed an “Amended Petition for [PCRA]” which appears
to be appellant’s second amendment to his PCRA petition filed on December 4,
2014. On July 1, 2016, the PCRA court provided appellant with notice of its
intention to dismiss his petition without a hearing, pursuant to
Pa.R.Crim.P. 907. On July 19, 2016, appellant filed pro se “objections” to the
PCRA court’s Rule 907 notice, reiterating his claim that he was entitled to an
evidentiary hearing due to the fact that the trial court’s purported failure to
issue a signed sentencing Order satisfied the “newly-discovered fact”
exception to the PCRA time-bar. (See “Objections to [Rule 907 Notice],”
7/19/16.) On August 24, 2016, appellant filed a fourth amendment to his
petition, entitled “Amended Petition.” As noted, on February 24, 2017, the
PCRA court formally dismissed appellant’s December 4, 2014 petition as
untimely. This timely appeal followed.3
119 A.3d 1058, 1064 (Pa.Super. 2015) (stating that, “while this Court has
held that Alleyne applies retroactively on direct appeal, we have declined to
construe that decision as applying retroactively to cases during PCRA review”).
3 On March 20, 2017, the PCRA court ordered appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). Appellant filed a timely pro se Rule 1925(b) statement on
April 3, 2017. On July 24, 2017, the PCRA court filed its Rule 1925(a) opinion.
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Appellant raises the following issue for our review:
[Whether appellant’s] Fifth, Sixth, and Fourteenth
Amendment Rights to Due Process and Effective
Performance of Counsel was (sic) Violated, where as
the Failure of the Court to issue a signed Designation
of Authority and or a Judgement of Sentencing Order
that contains the Mandated Sentencing Codes
Resulted in [appellant] Remaining Continuously
Unsentenced years beyond the 90 days that a
sentence must be imposed after a Conviction or the
Entry of a Plea of guilty or Nolo Contendere and [trial]
Counsel was Ineffective for failing to Preserve these
Claims[?]
Appellant’s brief at 10 (numeration, internal quotation marks, and citation
omitted).
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted). Lastly, we note that,
“[a]lthough this Court is willing to liberally construe materials filed by a pro se
litigant, pro se status confers no special benefit upon the appellant[.]”
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Commonwealth v. Adams, 882 A.2d 496, 498 (Pa.Super. 2005) (citation
omitted).
Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the jurisdiction of this court and the PCRA court.
Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when a defendant’s judgment of sentence becomes
final. 42 Pa.C.S.A. § 9545(b)(1). “A judgment becomes final at the conclusion
of direct review, including discretionary review in the Supreme Court of the
United States and the Supreme Court of Pennsylvania, or at the expiration of
the time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3). If a PCRA
petition is untimely, a court lacks jurisdiction over the petition.
Commonwealth v. Callahan, 101 A.3d 118, 120-121 (Pa.Super. 2014).
As noted, a panel of this court affirmed appellant’s judgment of sentence
on February 1, 1994, and our supreme court denied allowance of appeal on
August 24, 1994. Commonwealth v. Izzard, 643 A.2d 704 (Pa.Super.
1994), appeal denied, 648 A.2d 787 (Pa. 1994). Consequently, appellant’s
judgment of sentence became final on November 22, 1994, 90 days after our
supreme court denied appellant’s petition for allowance of appeal and the time
for filing a petition for writ of certiorari with the United States Supreme Court
expired. See 42 Pa.C.S.A. § 9545(b)(3). In order to comply with the filing
requirements of the PCRA, appellant was required to file his petition by
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November 22, 1995. See 42 Pa.C.S.A. § 9545(b)(1). Appellant filed the
instant petition on December 4, 2014, more than 19 years past the deadline.
As a result, this petition is patently untimely and the PCRA court lacked
jurisdiction to review it, unless appellant alleged and proved one of the
statutory exceptions to the time-bar set forth in Section 9545(b)(1).
To invoke an exception under Section 9545(b)(1), a petitioner must
allege and prove:
(i) the failure to raise the claim previously was the
result of interference by government officials
with the presentation of the claim in violation of
the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
(iii) the right asserted is a constitutional right that
was recognized by the Supreme Court of the
United States or the Supreme Court of
Pennsylvania after the time period provided in
this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). The appellant bears the burden of pleading
and proving the applicability of one of these exceptions. Commonwealth v.
Marshall, 947 A.2d 714, 720 (Pa. 2008) (some citations omitted). “In
addition, a petition invoking any of the timeliness exceptions must be filed
within 60 days of the date the claim first could have been presented.”
42 Pa.C.S.A. § 9545(b)(2).
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Instantly, we agree with the PCRA court that appellant has failed to
properly plead and prove a valid statutory exception to the PCRA time-bar.
As best we can discern from his pro se brief, the crux of appellant’s argument
is that: (1) the blanket designation of persons that were authorized to sign
the written bill of information in this case constituted governmental
interference; and (2) the purported failure of the trial court to sign the
sentencing order satisfied the “newly-discovered fact” exception to the
time-bar. (See appellant’s brief at 10-13.) Appellant, however, fails to
identify or describe any specific act of interference on the part of government
officials with respect to the bill of information. Nor does appellant indicate
exactly how this “unknown fact,” namely, the trial court’s purported failure to
sign a sentencing order filed more than 20 years earlier, “could not have been
ascertained by the exercise of due diligence.” See 42 Pa.C.S.A.
§ 9545(b)(1)(ii). Additionally, appellant has failed to specify exactly when he
became aware of this alleged governmental inference or “new fact,” despite
the fact both the sentencing order and bill of information had been of record
for over two decades at the time he filed his December 4, 2014 petition. Thus,
appellant cannot establish that he brought these purported exceptions to the
PCRA time-bar “within 60 days of the date the claim first could have been
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presented[,]” as required by Section 9545(b)(2). See 42 Pa.C.S.A.
§ 9545(b)(2).4
Based on the foregoing, we agree with the PCRA court that appellant
failed to satisfy any of the PCRA time-bar exceptions and that it lacked
jurisdiction in this matter. (See PCRA court opinion, 7/24/17 at 3.)
Accordingly, we discern no error on the part of the PCRA court in dismissing
appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/18
4 Moreover, to the extent appellant raises allegations of trial counsel’s
ineffectiveness in connection with his argument, see appellant’s brief at 10,
we note that, generally, claims of trial counsel ineffectiveness do not operate
as an independent exception to the one-year jurisdictional time-bar of the
PCRA. See Commonwealth v. Breakiron, 781 A.2d 94, 97 (Pa. 2001)
(allegations of ineffective assistance of counsel will not circumvent the
timeliness requirement of the PCRA); Commonwealth v. Bennett, 930 A.2d
1264, 1272-1273 (Pa. 2007) (holding that an allegation of PCRA counsel’s
ineffectiveness cannot be invoked as a “newly-discovered fact” exception to
the PCRA time-bar, except where PCRA counsel abandons his client on
appeal.)
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